Earlier this month, we learned that Ruth Bader Ginsburg wouldn't recommend our own Constitution as a model for other countries considering one, because, you know, it's really too old to be relevant today, and it doesn't guarantee nearly enough rights, and it's much too hard to change. That seemed to me to betray a complete ignorance of what a constitution should be -- a bedrock of principles upon which the law is erected. Now, I know for sure that impression was right:
Supreme Court Justice Ruth Bader Ginsburg suggested Friday that her predecessors on the high court mistimed the milestone 1973 Roe v. Wade case that legalized abortion nationwide.
"It's not that the judgment was wrong, but it moved too far too fast," Ginsburg told a symposium at Columbia Law School marking the 40th anniversary of her joining the faculty as its first tenure-track female professor.
When legislatures are creating laws, they need to be very much aware of prevailing public opinion and other ambient circumstances. Othwerise, they risk being too far ahead of the public, which will result in a law ignored so much that it breeds cynicism about the law itself. But the Supreme Court's job is to interpret those laws to see if they meet constitutional muster, a decision that should never change with the mood of the country. The way Ginsberg and here Constitution-as-a-living-document cohorts see it, the court is just a super legislature.
Though for the wrong reason, she does stumble on the right answer:
Alluding to the persisting bitter debate over abortion, Ginsburg said the justices of that era could have delayed hearing any case like Roe while the state-by-state process evolved. Alternatively, she said, they could have struck down just the Texas law, which allowed abortions only to save a mother's life, without declaring a right to privacy that legalized the procedure nationwide.
"The court made a decision that made every abortion law in the country invalid, even the most liberal," Ginsburg said. "We'll never know whether I'm right or wrong ... things might have turned out differently if the court had been more restrained."
The story mentions the similar dynamic unfolding today over same-sex marriage and wonders if the court will act sooner rather than later in having a say that would replace the state-by-state process the way Roe. v. Wade trumped states on abortion. My guess would be sooner. There is an extra issue here not present on abortion -- whether states have to recognize gay marriages granted in other states. The more states that legalize same-sex marriage, the more necessary a "full faith and credit" ruling will be.